A state appellate court twisted itself into knots to prevent the state’s law restricting medicalized gender transition for minors.
A state appellate court twisted itself into knots to prevent the state’s law restricting medicalized gender transition for minors.
I n the 1960s, Milton Bradley created Twister, marketing it as the game “that ties you up in knots.” A large plastic mat was adorned with multicolored circles, and a spinner told each consecutive gamer where to place his or her arm or foot.
Many federal courts across the country seem eager to play that game in their haste to thwart many of President Trump’s Article II powers. But last Tuesday a state court joined the fun, when the Ohio Tenth District Court of Appeals held that Ohio’s law designed to protect minors from often irreversible chemical gender transition procedures violates the Ohio constitution.
Regular readers will recall that Ohio’s SAFE Act, passed over Governor Mike DeWine’s veto, protected children by prohibiting surgical interventions and puberty blockers for those under 18. It also prohibits boys from girls’ sports. After a five-day hearing with testimony from multiple medical experts, the trial court upheld the law.
The plaintiffs, two teens undergoing the early stages of medicalized gender transition and represented by the ACLU, appealed the decision with a kitchen sink of state constitutional arguments. With a foot firmly planted on a yellow circle, the court reached across to plant a hand on a red circle — basing its decision on a first-of-its-kind argument under a 2011 amendment to the Ohio constitution designed to prevent the state from enacting a state-based Obamacare system.
That citizen initiative, part of a Tea Party backlash against the Affordable Care Act, provides:
No federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system. No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health insurance. No federal, state, or local law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance.
The Tenth District seized upon the second sentence of the amendment and held that the Ohio General Assembly could not constitutionally prohibit doctors from providing puberty blockers or cross-sex hormone shots for minors.
Of course, if that is the meaning, then the state of Ohio has no authority to regulate the practice of medicine. Leeches and bloodletting? As long as your doctor says it will help. Cranial lobotomy? It’s between you and your doctor. You’ve got a constitutional right!
The Tenth District tried to limit its reasoning, but its limiting-principle cure is even worse than the no-regulation disease — medical “consensus” as measured by the position statements of politicized health-care industry groups. The court thus delegated the state’s power to regulate health care to an unelected and unrepresentative trade industry group. This, despite a trial record that included testimony from medical experts who outlined contrary evidence and a developing consensus that these treatments are inappropriate for minors.
But it did not even stop playing Twister there. After construing the enumerated 2011 amendment to create a right to buy whatever medical trade association consensus deems appropriate, the Tenth District held that there was an unenumerated right for parents to purchase health care for their children (again, with the caveat that it is industry-approved health care). It does beg the question why Ohioans would have bothered with the 2011 amendment if, since the 19th century, such a right was there in the Ohio constitution all along.
Originalism is usually thought of as a legal tool to construe parts of a law or constitution from the dusty, distant past — a judicial methodology that prevents slowly creeping changes of social norms from generating new constitutional meanings that were never approved by the sovereign people. But originalism applies with even stronger force for recent provisions of the constitution.
Applying originalism here would have produced a starkly different result. Everyone understood the Health Care Freedom Amendment, as it was known, to be a popular reaction to the unpopular Affordable Care Act. In the news media, the opponents even sniffed at the time that it would be ineffective at stopping or even slowing the Obamacare juggernaut.
Literally nobody thought the state was forfeiting its power to regulate the practice of medicine, or to protect minors within the health-care system. The amendment left in place all of Title XXVII of the Ohio Revised Code (Health, Morals and Safety) — and in the very next sentence after the paragraph above, it specifically preserved the General Assembly’s authority to pass “any laws calculated to deter fraud or punish wrongdoing in the health care industry.” That is why the State Medical Board has remained a functioning body since 2011, empowered by the legislature to police the standard of care among physicians.
Ohio’s law protecting minors from often irreversible chemical and surgical treatments is common sense. It was passed by a supermajority of the elected representatives of the people and was the law of the land for seven months, until last week’s order. Health systems and sports leagues have changed their rules and practices in reliance on the law. And there is no evidence that the good people of the state, whether in 1802 or 2011, deprived themselves of the power to adopt such a law.
My office has asked for a stay and will appeal to the state’s highest court. We are optimistic that the originalists on the Ohio Supreme Court view Twister as an anachronistic game, and unsuitable for legal logic.